The Environmental Planning and Assessment Amendment Bill 2012 (NSW) (Bill) was recently introduced to the NSW Parliament. The Bill proposes amendments that clarify the status of development control plans (DCPs) as mere ‘guidelines’.

It requires consent authorities to give less weight to DCPs than to environmental planning instruments (EPIs). If passed, these reforms are likely to have profound implications for the role of DCPs in the development assessment process.

What is a development control plan?

The ‘relevant planning authority’, being the local council in relation to local environmental plans and the Director-General of the Department of Planning and Infrastructure in respect of State Environmental Planning Policies, is responsible for preparing DCPs.

If the relevant planning authority considers it necessary and desirable, it may prepare a DCP to:

  1. (a) M ake more detailed provision with respect to development to achieve the purpose of the environmental planning instrument (EPI). A provision of a DCP will be of no effect to the extent that it is inconsistent with an EPI;
  2. (b) Identify development as advertised development;
  3. (c) Provide for (or exclude) public or particular advertising or notification of specified development;
  4. (d) In the case of a council, specify criteria that the council is to take into consideration in determining whether to give an order under Division 2A of Part 6 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act); and
  5. (e) M ake provision for anything permitted by the EPA Act to be included in a DCP. For instance, section 26(4)(a) of the EPA Act provides that a DCP may specify the species, trees or other vegetation that are protected or preserved by the provisions of the applicable EPI.

What is the effect of a development control plan?

In circumstances where a DCP applies to land, the consent authority is required to take into account the provisions of that DCP. Section 79C(1) of the EPA Act provides:

  1. Matters for consideration – general

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

  1. the provisions of:

i.  ...

iii. any development control plan, and

iiia ...

[emphasis added].

By virtue of section 79C(1)(a)(iii), a DCP is a relevant consideration that must be considered by the consent authority: Zhang v Canterbury City Council (2001) 115 LGERA 373. Failure to ‘take into consideration’ the applicable DCP will invalidate the development consent: see North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Further, the consent authority must give real consideration to the DCP and, if certain preconditions specified in that DCP are not satisfied, development consent must not be granted: see North Sydney Council v Ligon 302 Pty Ltd (No 2) (1996) 93 LGERA 23.

In Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at [87], McClellan CJ set out a summary of the principles relevant to the consideration of the weight to be given to DCPs. In particular, that a DCP ‘may operate to confine the intensity of development otherwise permitted by a local environmental plan’. This decision has been applied in numerous decisions of the Land and Environment Court, but the principles set out in the judgment will no longer be determinative of the role and weight to be given to DCPs if the Bill is passed.

What are the changes proposed by the Bill?

Amongst other things, the Bill seeks to clarify the status of DCPs in the decision making process. The principal purpose of DCPs will be to provide ‘guidance’ to proponents and consent authorities in respect of development.

Other reforms proposed by the Bill include:

  1. the removal of the ability of DCPs to ‘make more detailed provision with respect to development ...’, which is replaced with the words ‘to provide guidance...’ (new proposed section 74C(1)(a)). This is further emphasised in new proposed section 74BA(1) which states ‘the provisions of a development control plan ... are not statutory requirements’;
  2. the addition of a provision to the effect that a DCP cannot have the ‘practical effect of preventing or unreasonably restricting development that is otherwise permissible...’ (new proposed section 74(5)(c));
  3. although DCPs will remain a relevant consideration in the assessment of a development application, a consent authority (new proposed section 79C(3A)):
    1. is to give the provisions of a DCP less weight than the provisions of an EPI;
    2. must not impose more onerous standards, where the development complies with set standards in the applicable DCP;
    3. is to apply the relevant standards ‘flexibly’ and allow alternative solutions, where development does not comply with set standards in the applicable DCP;
    4. may only consider the DCP in connection with the assessment of the specific development application before it; and
    5. must not have regard to how the provisions of a DCP have been applied previously or might be applied in the future.

The savings and transitional provisions of the Bill indicate that these amendments will extend to all DCPs in force immediately before the commencement of those amendments. However, the changes identified in paragraph (c) above, will not apply to the determination of a development application made before the commencement of these amendments.

Implications

The NSW Government’s A New Planning System for NSW: Green Paper (Green Paper) released in July 2012 described DCPs as adding ‘another layer of complexity and regulation which has further exacerbated dysfunctions in the system’, resulting in ‘lack of flexibility’ and inhibiting ‘viable outcomes’.

Consistent with the approach in the Green Paper, the Bill seeks to remove the complexities and uncertainties associated with DCPs by characterising them as ‘guidelines’ rather than as a restriction on or impediment to development. By so doing, the Government has indicated that non-compliance with the provisions of a DCP should not be construed as a prohibition on development otherwise permissible. Further, the Second Reading Speech for the Bill indicates that the objectives of the reforms are to “remove more unnecessary impediments” and “to assist in boosting housing supply”.

Assuming the Bill is passed, these amendments will change the role of DCPs to provide ‘guidance’ rather than detailed controls that prevent or restrict development. The reforms also profoundly alter the consideration of DCPs by consent authorities in the development assessment process. The amendments, if passed, will not alter consent authorities’ consideration of development applications lodged before the commencement of the proposed section 79C(3A).